Tag Archives: digital millennium copyright act

First comes love, then comes marriage, the baby carriage, and, for many Americans, divorce. Even if a couple doesn’t have an estate to divvy, family matter lawyers are reporting emerging trends that may have couples wishing they had signed prenup.

As the director of family law at Rose Law Group, Kaine Fisher has prepared many high-profile pre- and post-nuptial agreements. Some have had unusual provisions, such as what happens if a spouse transmits a sexually transmitted disease or a clause that liquidates damages for infidelity. However, there’s a new trend he and other local lawyers are touting — social media clauses.

Facebook, Twitter and Instagram are the first places millions of people turn to share their thoughts, photos and lives. It’s where professional and personal relationships grow, thrive and, sometimes, end. And, when the inevitable happens, there’s a chance the scorned and burned feelings will turn up on social media platforms in the form of private or unflattering information or photos about the other person. This is where the expertise and intervention of attorneys is rapidly required.

“Over the past couple of years, I have noticed an explosion of requests by clients wanting to include what is more affectionately known as a ‘social media clause’ in their pre- and post-nuptial agreements,” Fisher says. “At the onset of a marriage, such provisions are effective in setting relationship boundaries. However, at the end of one, these provisions are are typically used as swords to achieve greater financial gain.”

The American Academy of Matrimonial Lawyers reported more than 80 percent of U.S. divorce attorneys say social networking is a rising topic in divorce proceedings. Social media has been a staple in divorce proceedings since MySpace was introduced in 2003, but Norma Izzo Milner, a litigator focusing in the areas of alternative dispute resolution, family law and domestic relations with Jennings, Strouss and Salmon Law Firm in Phoenix, is still surprised by how few clients still aren’t considering social media prenups.

“Once I provide some basic legal information about how social media can play a part in or impact either a relationship or the ending of one, they tend to take precautions and limit their social media activity,” she says.

People just can’t seem to help themselves, Fisher says, adding that they also don’t always have control over what hits the web.

“A jaded ex-girlfriend or a careless spouse can expose, either intentionally or intentionally, private photographs or videos of you that you never wanted anyone to see,” he says.

“The reality is, most people connect through cyber space and report daily activities from what they are eating to how they are feeling. This can be a dangerous outlet for people facing the emotional challenges of a divorce or legal separation,” Milner says.

The amount of couples who enter into prenuptial agreements, despite a divorce rate of 3.6 per 1,000 people, is surprisingly low, says Milner. The two leading causes of getting a prenup, she says, is to protect an estate or to prevent the difficulty and costs of a divorce, based on previous experience.
“I find it surprising that the majority of people spend a large percentage of their daily time engaged in some form of social media, but do not think about how it might impact their lives long-term,” she says. “I generally have to bring the topic up for discussion with my clients.”

Social media prenups can be drafted as inclusive of existing and future platforms. In the event of being blocked from an ex’s social media pages, Milner says couples can include an term that enables access to personalized web content for a period of time after separation.

The family law group at Burch & Cracchiolo hasn’t used a social media clause in any of the prenups it has drafted, but recognizes it as something that’s on the horizon, says Marketing and Client Development Manager Chris Long.

Chris Ingle, an attorney at Rose Law Group who specializes in online defamation and protection of intellectual property, has not encountered a social media prenuptial case outside of the new articles and online buzz.

“I have to say that if somebody approached me with that idea, I’d recommend against that very strongly,” he says.

It’s a matter of a dispute escalating into a court battle that becomes public record and costs “a small fortune,” he says, adding, “It takes what started out as a disagreement and turns it into a full-fledged litigation war. I don’t think that’s in everyone’s best interest.”

Ingle recommends couples who are going their separate ways to write a non-disparagement clause, which promises couples won’t go out of their way to say anything bad about the other person or have anyone do that on their behalf.

It’s not necessarily the words that have many people preoccupied — there are images and the revenge porn industry to consider.

“If you’re going to let somebody take those photos and videos, you have to trust them implicitly,” says Ingle. “Once it gets out there (online), it’s difficult (to reverse).”

Some options, particularly for people whose images or videos are posted on a website by a third party (presumably an ex), include filing for copyright of the footage. It’s “cheap and easy,” says Ingle, to get a copyright. Unless your significant other challenges the claim, someone can generally submit a Digital Millennium Copyright Act (DMCA) request to the hosting website and get the photo or video removed.

For couples who drafted their prenups pre-Zuckerberg, who, by the way, had a relationship agreement drafted up before his marriage to Priscilla Chan that required 100 minutes of alone time away from Facebook’s headquarters, Milner still suggests considering a dialog about social media in the relationship and, potentially, a post-nuptial agreement.

“It’s never too late to have the discussion and spell out expectations and healthy boundaries to avoid future problems,” she says.

Pinterest copyright issues can prove problematic for business proprietors.

Since its inception in 2010, social networking website Pinterest has become the third most-popular social network in the U.S. Only social-media giants Facebook and Twitter surpass it in total monthly visits, according to Experian Hitwise.

With more than 100 million visits each month, Pinterest has created a massive opportunity for businesses to get their names and products in the public eye. From mega-retailers like The Gap and Nordstrom, to fast-food chains, local frozen yogurt shops and individual Etsy storefronts, countless companies are making use of the site’s potential for driving traffic to their own websites.

While the benefits of this kind of visibility can be invaluable, the very nature of how Pinterest is generally used can be problematic and could expose businesses to a litany of legal issues.

“The vast majority of images [posted to Pinterest] are copyrighted,” says Stephanie Fierro, an attorney with The Frutkin Law Firm, PLC, in Phoenix.

Under the Digital Millennium Copyright Act, certain “Safe Harbor” provisions protect online service providers, such as Pinterest, from copyright infringement liability on material posted by the service’s users. The users themselves, however, are not protected.

According to Fierro, individual users are often protected by fair use copyright exceptions, but this generally doesn’t extend to moneymaking enterprises.

“ ‘Fair use’ allows for the use of copyrighted material for commentary, criticism or news reporting purposes,” Fierro says. The problem, she adds, is because companies are using Pinterest to market commercial products (i.e make money), the fair use exceptions do not apply.

“Imagine you’re a cake decorator,” Fierro says. “You post a picture of one of your cakes next to someone else’s picture of a beautiful wedding scene to say, ‘Look how great this cake would look in your wedding.’ This could leave you exposed as a business owner.” If the owner of the rights to the image of the wedding scene decides he or she wants a piece of your cake-selling action, you may end up in hot water.

Fierro believes that businesses are doubly vulnerable, compared to individual users, because companies are seen as having deep pockets and assets worth going after.
With all this to consider, the question becomes whether it is worth a business owner’s time and effort to market his or her products or services using Pinterest. Fierro believes the answer is clear: It depends.

“Are you OK with your images being used elsewhere? Is [marketing on Pinterest] going to drive good traffic to your website? Are you going to derive real financial benefit from this kind of marketing? In the case of the cake decorator, who makes money by selling cakes, the answer is probably ‘yes.’ If you want to make money from the use of your images by others, it probably isn’t for you,” she says.

If a business owner does decide that he or she wants to make use of Pinterest as a marketing tool, there are several precautions that can be taken to avoid any copyright or trademark violations.

“Ownership or permission is always best,” Fierro says. “Barring that, always make sure the material is properly credited. Link the photo back to where it came from. The goal is to always make sure proper credit is given to the original source.”

Fierro says you should never copy pictures you find on Pinterest for use on your own website. You don’t know where they’ve come from or to whom they belong. Just don’t do it.

As the website continues to grow, copyright issues on Pinterest may or may not grow along with it.

“All it would take is for one picture to be used in the wrong way,” Fierro says. “The issues with Pinterest have been talked about for a while. I’ve had to defend clients against similar claims of infringement, as well as made claims on clients’ behalves for infringement on their work. It’s necessary for people to make these types of claims so they don’t lose the rights [and the value of those rights] to their work.”